Delhi High Court
Krishan Kumar @ Setu And Anr vs Govt. Of Nct Of Delhi on 1 October, 2014
$~
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment reserved on : 24.9.2014
Judgment delivered on : 01.10.2014
+ CRL.A. 355/2006
KRISHAN KUMAR @ SETU AND ANR ..... Appellants
Through Mr.Maninder Singh, Mr.Sanjay
Chaubey, Ms. Aekta Vats, Mr.
Jaskaran Sibia and Mr. Jagmeet
Randhawa, Mr.Serman Rawat,
Mr.Dinkar Takiar, Prateek
Sisodia, Advs.
Versus
GOVT. OF NCT OF DELHI ..... Respondent
Through Mr. Ravi Nayak, APP for the
State.
CORAM:
HON'BLE MS. JUSTICE INDERMEET KAUR
INDERMEET KAUR, J.
1 This appeal is directed against the impugned judgment and order
of sentence dated 19.4.2006 and 28.4.2006 respectively wherein the two
appellants Krishan Kumar @ Setu (husband of the victim) and Omwati
@ Budho (elder sister-in-law of the victim) had been convicted under
Sections 304 B and 498A of the Indian Penal Code, 1860 (IPC); each of
them had been sentenced to undergo RI for 10 years for their conviction
under Section 304B of the IPC and to pay a fine of Rs.10,000/-, in
default, to undergo RI for 1 year; for the offence under Section 498A of
the IPC each of them had been sentenced to undergo RI for 3 years and
to pay a fine of Rs.5000/-, in default, to undergo RI for 6 months. Out
of the recovered fine Rs.25,000/- had been directed to be paid to the
heirs of the victim.
2 Nominal rolls of the appellants reflect that as on date when they
were granted bail appellant Krishan Kumar had suffered incarceration of
3½ months and appellant Omwati had suffered incarceration of about 2
years and 2 months.
3 Record discloses that Krishan Kumar had married the deceased
Babita @ Bobby on 06.3.1995. They lived at their matrimonial home at
F-767, Ganesh Nagar, Shakarpur, Delhi. The victim had died an
unnatural death on 30.6.1997. This was after 2 years and 3 months of
their marriage. The victim had first been taken to Walia Nursing Home
on 29.6.1997 in unconscious condition. She could not be given
adequate medical attention in the private nursing home and she was
referred to the LNJP Hospital. She was declared dead on 30.6.1997.
Cause of death was poisoning because of phosphate sulfite.
4 FIR was registered on the statement of the mother of the victim
Vimla Devi (PW-1). She had given her first statement to the SDM on
01.7.1997 followed by two other supplementary statements, dated
17.7.1997 and 14.10.1997. Her version was that she had got her
daughter married according to Hindu rites and had spent lavishly on the
marriage; Rs.2,50,000/- had been given in cash besides other dowry
articles. For the first 2-3 months of her marriage PW-1 did not hear any
complaint from her daughter but thereafter her husband and in-laws
started beating her for bringing insufficient dowry. She visited her
parental home for the first time 2 to 3 months after her marriage.
Thereafter she returned to her matrimonial home but again came to her
parental home at which time she was pregnant. She gave birth to a
female child on 26.3.1996 while she was at her parental home. Out of 2
years and 3 months of her married life she spent about 1½ years in her
parents‟ home. She returned to her matrimonial home in December,
1996. She succumbed to her death on 30.6.1997. This narration of
PW-1 was corroborated by the statement of her son Kuldeep (PW-17).
He had also given three statements before the SDM i.e. on 01.7.1997
17.7.1997 and 14.10.1997. The third close relative of the family was
Madan Pal, the maternal uncle of the victim, examined as PW-24. His
statement was also recorded by the SDM. He was a resident of
Bulandsahar. The SDM Mr.Vinay Kumar was examined as PW-20. He
had prepared the inquest report Ex.PW-20/B. Admittedly, the victim
had first been removed to the Walia Nursing Home from where she had
been shifted to LNJP Hospital. Paras Ram, the driver of the ambulance
of Walia Nursing Home (who had shifted the victim to the LNJP
Hospital) was examined as PW-19. Another close relation of the victim
i.e. her brother-in-law Dinesh Kumar was examined as PW-15. Om Pal
(PW-14) and Braham Dev Sharma (PW-16) were also known to the
family and had also been examined. The post mortem on the dead body
was conducted by Dr.K.Goyal (PW-5). No external injury was noted
upon the body of the victim but the cause of death was not given as the
gastric lavage of the victim had been sent for scientific analysis which
was examined by Sh.K.Chaudhary, the Technical Officer at the FSL
Patna. He was examined as PW-18 and as per his opinion the gastric
lavage when examined contained phosphide and basic drugs. On this
basis PW-5 Dr.K.Goyal vide his subsequent opinion (Ex.PW-5/B) had
opined the cause of death as poisoning due to ingestion of phosphide.
Two letters dated 21.4.1995 and 11.6.1995 purported to have been
written by the deceased to her mother (Vimla Devi) and to her maternal
uncle Madan Pal Singh (PW-24), along with the admitted specimen
handwriting of the victim had been sent to the FSL, Delhi. They had
been examined and Smt. Deepa Verma (PW-27) had opined that the
questioned documents i.e. the letters when compared with the specimen
handwriting S1 and S2 reflected that they were written in the same
handwriting, meaning thereby that the letters dated 21.4.1995 and
11.6.1995 were written by the victim. This was another crucial piece of
evidence relied upon by the prosecution. In view of the aforenoted
evidence collected, both oral and documentary, the accused persons
were convicted and sentenced as noted supra.
5 On behalf of the appellants arguments have been heard in detail.
It is pointed out that the testimony of PW-1,PW-17 and PW-24 i.e. the
mother, brother and the maternal uncle respectively of the victim are full
of contradictions. It is pointed out that there are three supplementary
statements recorded of each of these witnesses and there is no
explanation as to why the first statement which was given on 01.7.1997
did not contain details of dowry demand; these lacunae were later on
filled in by the supplementary statements of these witnesses which were
recorded on 17.7.1997 and 14.10.1997. It is pointed out that the first
ingredient of a dowry death is a dowry demand but this was not
forthcoming in the testimonies of the witnesses; there are general and
unspecified allegations. The demand of motorcycle was not reflected
till the third supplementary statements of the witnesses were recorded
i.e. on 14.10.1997. Why were the witnesses silent in their earlier
statements? The statements given by the witnesses were an
afterthought. Such witnesses are not credible and their versions cannot
be relied upon. It is argued that to make out the ingredient "soon before
her death" which is the second essential of a conviction under Section
304 B of the IPC it was only in the second supplementary statement
(dated 17.7.1997) of these witnesses that it was mentioned that a phone
call was exchanged between the victim and her brother (PW-17) on
27.6.1997. It did not find mention in the first statements of the
complainant (PW-1) or of her son or her brother which were recorded on
01.7.1997. On no count can the conviction be sustained. It is based
only on conjectures and surmises. Attention has been drawn to the
letters Ex.P-1 and Ex.P-2 purported to have been written by the victim
to her mother and her maternal uncle. It is pointed out that even in these
letters the victim has all along stated that her husband Krishan Kumar @
Setu was a demigod and she had no complaint against him or her
mother-in-law. Her grievance was against the other persons. In fact the
gist of these letters suggest that the victim was happy with her husband
in the matrimonial home. The victim had returned to her matrimonial
home in December, 1996; the incident had taken place on 29.6.1997 i.e.
six months thereafter; there is no incident or allegation that anything
untoward happened in this intervening period of six months. Even
presuming that there was some demand of a motorcycle at the time of
marriage it would be difficult to believe that this demand was so
consistent and continued for the next 2½ years till the victim was forced
to take her own life. The victim was really not interested in living in
Delhi. She wanted to stay at Bulandsahar where her parental family
resided. This was the pressure she used to put on her husband and his
not agreeing to this unreasonable demand had led her to commit suicide.
The appellants have been falsely implicated. Learned counsel for the
appellants had placed reliance upon 2014 IV AD (CRI) (SC) 69
Ramaiah @ Rama Vs. State of Karnataka, (2010) 9 SCC 189 Babu Vs.
State of Kerla, (2011) 3 SCC 109 State Through Central Bureau of
Investigation Vs. Mahender Singh Dahiya and 2014 II AD(CRI) (DHC)
81 State Vs. Naresh & Ors. Submission being that in an incident of
such a nature, where a hapless woman losses her life, emotions and
subjective feelings should not be allowed to cloud the mind of the Court
to reach a conclusion which is otherwise not based on the evidence
produced in the Court; suspicion cannot take the place of proof. This
being a case of circumstantial evidence; all circumstances must point to
the guilt of the accused; there must be only a single hypothesis of the
guilt of the accused and all other hypotheses must be excluded. This has
not been established in the instant case. Appellants are entitled to
benefit of doubt and a consequent acquittal.
6 Arguments have been refuted by the State. It is submitted that on
no count does the impugned judgment call for any interference. Learned
Public Prosecutor has drawn attention of this Court to the statements of
the family of the victim recorded under Section 161 Cr.P.C. Submission
being that a supplementary statement had to be recorded of the family
members as they were in emotional stress at that point of time and that
has been explained by them in their subsequent statements which is why
all details could not be elicited in the first statement. The letters Ex.P-1
and Ex.P-2 depict the traumatic state of mind of the victim; she had by
and large resigned herself to her fate; she tried her best not to make any
complaint to her mother but her harassment did not end even when she
returned to her matrimonial home in December, 1996 along with her
nine month old baby. It is difficult to imagine that a mother of a 1- ½
year old child would leave her newborn to the mercy of the world and
take her own life unless and until there were compelling circumstances
as was in the instant case. Learned Public Prosecutor has placed
reliance upon MANU/DE/1657/2014 Sudhakar Singh Vs. State to
support his submissions that all ingredients of Section 304B of the IPC
stand fulfilled in this case. The telephonic call exchanged between
PW-17 and the victim on 27.6.1997 (which was just three days prior to
her death) had reiterated the woes of his sister. On no count does the
impugned judgment call for any interference.
7 Arguments have been heard. Record has been perused.
8 The star witnesses of the prosecution are PW-1, PW-17 and PW-
14. They are the mother, brother and maternal uncle respectively of the
victim. They being the closest relations of the victim knew the nitty-
gritties of the married life of the deceased.
9 Testimony of PW-1 discloses that Babita was married to Krishan
Kumar on 06.03.1995. This was the second marriage of Krishan Kumar.
His first marriage with Neeru, daughter of Narain Singh, had ended in
divorce. At the time of the marriage appellant was 40 years of age and
Babita was around 24 years. Further deposition of PW-1 is that appellant
Omwati @ Bhudo and Amar Singh (sister-in-law and brother-in-law of
the deceased) were living in the same house where Babita and Krishan
Kumar were living although on separate floors. All articles of marriage
had been given in the dowry including cash of Rs.2.5 lacs. Babita visited
her parents‟ house 3-4 days after the marriage where she stayed for 1- ½
months. She was taken back by Amar Singh and Bhura. She returned in
the month of September when her brother Kuldeep (PW-17) had gone to
bring her. At that time, Babita was pregnant. She remained in her
parents‟ house for 1- ½ years. Her daughter was born in March, 1996 at
her parents‟ home. The accused persons had come on several occasions
to take back Babita but PW-1 did not send her as Babita did not want to
go back due to the harassment which was meted out to her. However,
with the intervention of the neighbours i.e. Braham Dev Sharma (PW-
16) and Om Pal Singh (PW-14), Babita had been sent back to her
matrimonial home in December, 1996. Babita used to write letters to
PW-1. Two letters dated 21.04.1995 and 11.06.1995 had been handed
over by PW-1 to the Investigating Officer. The first letter (Ex.P-1) dated
21.4.1995 had been written by Babita to her maternal uncle Madan Pal
Singh (PW-24) and the second letter dated 11.06.1995 had been
addressed by the deceased to her mother (PW-1). Further deposition of
PW-1 is that PW-1 was being harassed with illegal demands of dowry
and this has been noted in these two letters. She was harassed for not
bringing a motor-cycle. The harassment continued even after December,
1996 when she returned and this was in spite of assurances given by
Amar Singh and Bhura. In a further part of her testimony, PW-1 has
stated that after the birth of her grandchild, Krishan Kumar had come to
house of Lokesh (PW-15-son-in-law) wherein Krishan Kumar had
beaten Babita and this was also in the context of Babita not having
fulfilled the demand of the motor-cycle. On 27.06.1997, PW-17 had
spoken to his sister on telephone wherein he told her that he is coming to
pick her. On 30.06.1997, they were informed that Babita was in critical
condition; they reached Delhi where they learnt that Babita had died
because of poisoning.
10 In her cross-examination, PW-1 admitted that her statement was
recorded on three occasions by the police; she was illiterate. They had
no telephone in their house but there was a telephone in the house of her
brother Madan Pal Singh (PW-24) which was just about three minutes
walking distance from her house. She had spoken to Babita on telephone
one month prior to her death wherein she had again stated that she was
extremely harassed. They had reached Delhi at 03:00 PM on
30.06.1997. On their asking about Babita, nobody answered; they learnt
from a neighbour that Babita had died one day earlier. She admitted that
her daughter was taken to Rajasthan for treatment as she had received
injuries in her ribs; since she did not get any relief, her further treatment
was done at Bulandshahar where she stayed in the house of her elder
son-in-law (PW-15). She admitted that initially Babita used to praise her
husband but later on she stated that she was being harassed by her
husband as well. She admitted she had given statement to the police
after consultation with her brother (PW-24) who was facing trial in a
murder case.
11 Kuldeep Singh (PW-17) was the brother of the victim. He
deposed that his sister was married to appellant Krishan Kumar on
06.03.1995. Vidai ceremony had taken place and at that time itself,
Krishan Kumar and his elder brother had started demanding a Bullet
motor-cycle; they were informed that after arranging the money, the
motor-cycle would be given to them. His sister returned to her parents‟
house after three days and on the way, she disclosed to her brother that
appellant Bhura and her two daughters were harassing her for gold
ornaments and Krishan Kumar and his brother were demanding a motor-
cycle. They used to tell her that she has come from a „neech khandan‟
(low family). He further deposed that his sister used to remain hungry
continuously, sometimes for 3-4 days. His sister had told him that Bhura
used to catch hold of her hair and used to turn her out of the house at
midnight by stating that she should not return to the house unless she
brought the gold ornaments and motor-cycle. He admitted that the two
letters i.e. Ex.P-1 and Ex.P-2 were written by his sister. His sister stayed
in her parents‟ house for 1- ½ years. They visited his elder brother-in-
law‟s house at Bulandshahar during this period; she disclosed to PW-17
that she had been beaten by her husband Krishan Kumar who had come
to visit her; in his absence, Krishan Kumar had given beatings to his
sister and deceased had told him about this. She had been treated at
Parihar Nursing Home. Panchayat was called in the village and the
accused persons had given assurances that Babita will not be maltreated
and on their assurance, Babita was sent back to her matrimonial home in
December, 1996. On 27.06.1997, he made a call to his sister to find out
her well being, when he was informed that the accused persons were
harassing her and they could kill her at any time. On 30.06.1997, PW-16
(Braham Dev Sharma) informed them that the condition of Babita was
critical. When they reached Delhi on 30.06.1997, they learnt that Babita
had died. In his cross-examination, PW-17 admitted that he had given
three statements to the police. His first statement was dated 01.07.1997,
the second statement was given on 17.07.1997 and the third statement
which he had given to the Investigating Officer was dated 14.10.1997.
The witness was confronted with these earlier statements wherein he
admitted that there is no mention of demand of motor-cycle by the
accused persons; there was also no mention that Babita was kept hungry
for several days and she was not given food. There was also no mention
that Bhura used to catch hold of her hair and used to turn her out of the
house at midnight by stating that she should not return to the house
unless she brought the gold ornaments and motor-cycle. He was also
confronted with that part of his version wherein he had stated that when
Babita accompanied him for the first time to the village, she had
disclosed to him that all the accused persons used to harass her for
motor-cycle and gold ornaments. He admitted that in his first statement
he had also not disclosed that he had made a call to his sister on
27.06.1997 asking her about her well-being.
12 Madanpal Singh, the maternal uncle of the victim (PW-24) was
also a resident of Bulandshahar where PW-1 and PW-17 were living. He
deposed that Babita had come to live with her parents on 2-3 occasions;
she stayed there for almost 1- ½ years. Krishan Kumar and his brother
Amar Singh had come to his house and requested him to send Babita
with them and on their assurance, Babita returned to her matrimonial
home in December, 1996. He admitted Ex.P-1 was a letter written by
Babita to him. In another part of his examination, he admitted that
quarrels used to take place between the accused and the deceased on the
issue of their living separately. PW-17 had been cross-examined by the
learned public prosecutor. He denied the suggestion that demand of
motor-cycle had been disclosed to him by Babita. In his cross-
examination by the learned defence counsel, he admitted that he learnt
about the death of Babita when they reached Delhi which was around
08:00 am on 30.06.1997.
13 Apart from these oral versions, the documentary evidence i.e. the
two letters purported to have been written by the deceased to her
maternal uncle and to her mother (Ex.P-1 and Ex.P-2) were admittedly
in her handwriting as had been opined by the senior scientific expert.
These letters have been perused. Letter dated 21.04.1995 (Ex.P-1) was
addressed to PW-24. In this letter, the victim had disclosed that her jeth
and jethani namely Om Prakash and Bhura used to harass her; she had
no grievance against her husband Setu (appellant Krishan Kumar); she
had also no grievance against her mother-in-law; her grievances were all
focused upon her brother-in-law and sister-in-law. It had further been
disclosed that sometimes because of this harassment, the victim used to
weep for the entire night; she had no money as the accused persons did
not give her any. One part of the letter also discloses that a bullet
(referring to a motor-cycle) had been given to her brother-in-law. She
did not wish to live in Delhi; if she lived there, her husband Setu would
not be allowed to join her; she wanted to be separated otherwise she
would commit suicide. The second letter dated 11.06.1995 was
addressed to her mother. This letter appears to have been written at a
happier moment. While addressing this letter to her mother she stated
that the injury suffered by her in the accident had not healed completely
but was likely to heal soon. She disclosed that her husband Setu was a
nice man and so also her mother-in-law (mummy) who was a simple
lady. Her husband was going on a tour; her weight had increased; she
requested her mother to ask her brother (Kuldeep) to arrange for the
gold items for herself otherwise she would be taunted; God had given
her courage.
14 The medical evidence i.e. the post-mortem of the victim
(Ex.PW-1/A) disclosed no external injury upon her person. Her gastric
lavage had been sent for a scientific analysis and the subsequent report
of Dr. K. Goyal (Ex.PW-5/B) had opined cause of death to be phosphide
poisoning.
15 The incident had occurred at 01:30 PM. This was on 29.06.1997.
In the course of investigation, it was revealed that on 29.06.1997, the
victim was first taken to Walia Nursing Home at Laxmi Nagar. She was
brought there in an unconscious condition. She was not responding; her
pulse also could not be recorded. She was referred to the LNJP Hospital.
She was shifted from Walia Nursing Home to LNJP hospital in an
ambulance and the driver of the ambulance has been examined as
PW-19. He has testified to the said effect. The victim had died on the
way. Her post-mortem as noted supra had noted no injuries.
16 The site inspection of the spot (Ex.PW-20/A) conducted by the
SDM (PW-20) i.e. the premises where the incident had occurred i.e. at
the bedroom of the first floor of the matrimonial home (F-769, Ganesh
Nagar, Shakarpur, Delhi) revealed that information about the death of
the victim had been reported in the local police station at 02:00 am on
30.06.1997. The death having occurred within less than seven years of
marriage, the SDM had also been summoned. In his initial report, he had
recorded that Babita‟s body was lying in the front room of the house, on
the floor. She was wearing a pink salwar and kurta. There was no injury
or any bruise; the victim was of medium height; her body had been
found in the bath-room but she had been taken to a nearby nursing
home. Nothing abnormal was noted.
17 The first Investigating Officer of this case was SI Kali Ram (PW-
22) and thereafter the investigation was transferred to Inspector Sukh
Ram Dahiya (PW-26). He had arrested the accused persons and obtained
the subsequent opinion on the cause of death of the victim.
18 In the statement of the accused persons recorded under Section
313 of the Cr.PC, both the accused persons had stated that they had been
falsely implicated in the present case. Amar Singh and appellant Bhura
were living separately. Deceased Babita did not want to live in Delhi.
She was pressurizing her husband to live in Bulandshahar which was not
possible for him. Appellant Krishan Kumar was a loving husband and
was affectionate towards Babita, who was his second wife. No evidence
was led in defence.
19 The evidence as accumulated, both oral and documentary,
discloses that as per PW-17 right from the inception Babita was
harassed. This had been disclosed by Babita to PW-17 when he had
taken her back to their home on 09.4.1995; she had disclosed that her
harassment for not bringing a motor cycle was consistent. On the other
hand, PW-1‟s version is that Babita was happy in her matrimonial home
for the first three months. It was only when she came to their house
around Sawan (July and August, 1995) that the deceased had disclosed
to her that she was being harassed by the accused persons. These
versions of PW-1 and P-17 who were the closest relations of the
deceased being her mother and brother are both conflicting; whereas
PW-1 has stated that for the first three months of her marriage the victim
was happy and in fact she used to sing praises of her husband Krishan
Kumar and it was only around July and August, 1995 that she disclosed
about her woes; PW-17 on the other hand stated that it was in April,
1995 itself that his sister disclosed that she had been harassed by her in-
laws for demand of a motor cycle. These oral versions of PW-1 and
PW-17 in this context are also in contrast with the documentary
evidence i.e. two letters dated 21.4.1995 and 11.6.1995 written by the
victim to her maternal uncle and to her mother. The letter dated
21.4.1995 states that the victim was harassed by her brother-in-law and
sister-in-law i.e. Om Prakash and Bhura; her husband Setu was nice; she
was happy with her mother-in-law; in case anything happened to her,
her mother and husband were not responsible; she had no money; she
did not wish to live in Delhi. The second letter written by the victim to
her mother was of the month of June 1995. This letter also speaks
kindly of her husband Setu and her mother-in-law. This letter in fact is
worded on a happier note; the deceased had disclosed that her weight
had increased; she had asked for the gold articles to be arranged for her
otherwise she would be taunted; this letter is conspicuously silent on the
demand of a motor cycle. The mention of the gold item was also for the
victim herself. It was not a demand by her husband or any of his other
relatives.
20 Another relevant fact is that the incident had occurred on
29.06.1997 when the victim had been removed (unconscious) to Walia
Nursing Home; she had died in the early morning hours of 30.06.1997
i.e. at about 02:00 am. The victim‟s family i.e. her mother, brother and
maternal uncle reached Delhi at about 08:00 am on 30.06.1997. This has
been disclosed in the version of PW-24. The victim was already dead by
that time. However, admittedly no complaint was made to any person
i.e. either to the Police or to the SDM up to 01.07.1997 when their
statements were recorded by the SDM. These statements of these three
PWs recorded by the SDM (Ex.PW-1/A, Ex.PW-17/A and
Ex.PW-20/A) have been perused. The allegations of harassment of the
victim are general allegations leveled against Krishan Kumar, Bhura and
Om Prakash and their two daughters Sudha and Geeta. Sudha and Geeta
have since been discharged. None of these statements disclose that the
victim was being harassed for a motor-cycle which is the main bone of
contention today. The entire argument and the theory of demand of
dowry as set up by the prosecution is in fact based on this motor-cycle.
If this was such a persistent demand being made upon the victim and it
was a primary cause of harassment, it would have been most natural for
the victim‟s family to have disclosed this in their first statement to the
SDM. However, this did not appear, not only in their first statement
dated 01.07.1997, but even in their second supplementary statement
recorded on 17.07.1997. Even then, there was no mention of demand of
motor-cycle. The demand of motor-cycle first emanated in the
statements of PW-1 and PW-17 on 24.10.1997. This was after a gap of
almost more than 3- ½ months and as rightly pointed out by the learned
counsel for the appellant, it creates a suspicion in the mind of the Court
that this was an afterthought. This was to fill up the gap of bringing the
case within the ambit of „dowry demand‟.
21 Another relevant fact which this Court notes is that the phone call
which was purportedly exchanged between the victim and her brother
Kuldeep (PW-17) on 27.06.1997 was also not mentioned by any of the
aforenoted witnesses in their statement recorded before the SDM on
01.07.1997. The brother (PW-17), for the first time, only on 17.07.1997
disclosed that he had made a phone call to his sister on 27.06.1997
wherein she disclosed that she was being harassed. This was an
important fact. The version of the prosecution is largely based on this
phone call on 27.06.1997 to bring the case within the ambit of „soon
before death‟. Otherwise, admittedly the victim had returned to her
matrimonial home in December, 1996 and no other incident of
harassment or cruelty had been leveled. Versions of PW-1 and PW-17
on this point are also contrary. PW-1 stated that her son had told her
about this conversation of 27.06.1997 that Babita had disclosed to him
that she had not been given food for the last five days and was being
harassed, much after the incident. PW-17, on the other hand, deposed
that on that day itself i.e. on 27.06.1997 itself he had informed his
mother about his conversation with Babita but his mother had advised
him to wait for 3-4 days. This part of the deposition of PW-17 being
in contrast with the testimony of PW-1, a doubt is cast as to whether at
all, a call was exchanged between PW-17 and the deceased on
27.06.1997?
22. Learned public prosecutor has argued that the victim had suffered
injuries because of the beatings given by Krishan Kumar to the victim at
Bulandshahar when he had gone to visit his wife at the house of PW-15.
PW-17 in this context stated that these beatings were given by Krishan
Kumar in his absence but she had been treated in Parihar Nursing Home
for about 30 days. PW-15 deposed that on 18.08.1995, Babita had come
to his house; her husband Krishan Kumar also reached there; there was
an argument; on inquiry they found Babita sitting with both hands on
her ribs and she was weeping; she stated that she had been assaulted at
her ribs by Krishan Kumar. She was treated at the Government hospital.
Testimony of PW-15 that she was being treated at Government hospital
is deviant from the version of PW-17 who has stated that his sister had
been treated at Parihar Nursing Home which is a private hospital. PW-1
on the other hand deposed that her daughter had been taken to
Rajasthan, Ganga Nagar for her treatment because of an injury in her
ribs and later on she was treated at Bulandshahar; she had not spoken of
any beating given to her by her husband. The letter dated 11.06.1995
however shatters these oral versions. In this letter Babita had
categorically stated that she had suffered an accident; her injuries had
not healed completely. This version having come from the victim herself
makes it clear that this was not a case of beating. It was an accident.
23 Section 304-B of the IPC presupposes the following essential
ingredients which have prima-facie to be established by the prosecution
before the presumption under Section 113 (B) of the Evidence Act can
be attracted. They are :-
(i) The incident of death has occurred within seven years of
marriage;
(ii) It was an abnormal death, whether homicide or suicide,
may not be relevant;
(iii) There have been dowry demands within the definition of
„dowry‟ as contained in Section 3 of the Dowry Prohibition Act, 1986;
(iv) These dowry demands must have been made „soon before
death‟ and what is „soon before death‟ has to be examined in the light of
the facts and circumstances of each case.
24 In the instant case, parameters (i) & (ii) stand established. The
prosecution has, however, failed to even prima-facie show that there was
a dowry demand. Dowry no doubt, includes gifts which have to be
given not only at the time of marriage and but even after the marriage
provided that they are in connection with the marriage itself. PW-1 and
PW-17 have harped on the demand of a motor-cycle which demand had
been made upon the victim right from the beginning of the marriage yet
it is surprising that in their statement given before the SDM, no such
demand was mentioned. The incident is dated 30.06.1997. Neither in
the statements of 01.07.1995 nor thereafter in their second statement of
17.07.1995, did they disclose this demand. This demand was first
disclosed before the Investigating Officer only on i.e. 14.10.1997 after a
gap of 3- ½ months. This is by and large the only dowry demand. The
gold articles purported to have been demanded by the appellants were
for the victim herself. The deceased in her letter dated 11.6.1995
(written to her mother) wanted the gold ornaments for herself; else she
would be taunted. There is no evidence to show that these gold
ornaments were for the accused or for any of his family members. The
third parameter i.e. of a "dowry demand" has not been established.
25 The fourth parameter i.e. "soon before death" is also not
established. The phone call purported to have been exchanged between
the victim and her brother has not been proved. There are conflicting
versions as to when this call was made and when it was disclosed by
PW-17 to PW-1. This piece of evidence not being trustworthy cannot
be relied upon.
26 In the absence of a prima facie case being established by the
prosecution, the presumption contained in Section 113 (B) of the
Evidence Act would not be attracted.
27 Another aspect of the matter which deserves to be noted is the
MLC and the post-mortem of the victim (Ex.PW-5/A). Admittedly, no
external injury on the body of the deceased had been noted. It was a case
of poisoning. The statement of the accused recorded under Section 313
of the Cr.PC that the victim wanted to leave Delhi and wanted to live in
Bulandshahar is a fact which cannot be ignored as it had come in the
version of PW-24 himself that the victim and her husband used to often
quarrel on the issue that they wanted to live separately.
28 It is also a part of the record that this was the second marriage of
the appellant Krishan Kumar. The fact that he was divorced from his
first wife was well known to the mother of the deceased; although
initially in her deposition she had tried to conceal this fact, in a later part
of her version she admitted that she knew that he was married. The
submission of the learned counsel for the appellant that the parties had a
simple marriage and in fact no dowry was exchanged, which is why no
dowry list had also been given by the parents of the victim is another
circumstance which cannot be ignored.
29 The Courts have time and again deprecated the practice of general
and vague allegations of dowry demands and beatings given to the
deceased without detailing specific instances. As has been rightly
pointed out by the learned counsel for the appellant, for a heinous
offence under Section 304-B of the IPC; the initial onus is on the
prosecution; it would shift upon the accused only after the initial burden
has been discharged which has not been done in the present case. An
unfortunate life has been lost but before the accused can be nailed for
the offence, the prosecution must prima-facie establish its case; only
then can the presumption of Section 113 (B) of the Evidence Act be
attracted. There is no explanation as to why the family of the victim did
not disclose the two most urgent circumstances i.e. demand of a motor-
cycle and the telephone call of 27.06.1995 in their initial statements
before the SDM. The version on the demand of motor-cycle emanated
for the first time 3- ½ months after the date of the incident i.e. on
14.10.1995. It has to be an afterthought. The telephone conversation of
27.06.1995 also emanated for the first time only on 17.07.1995. This
was also to fill in the lacuna for the necessary ingredient of "soon before
death".
30 In these circumstances, this Court grants benefit of doubt to the
accused persons. Appeal is allowed. Accused persons are acquitted. Bail
bonds cancelled. Surety discharged.
INDERMEET KAUR, J
OCTOBER 01, 2014/A/ndn
